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Request for Public Comment

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Antitrust Modernization Commission.


Request for public comment.


The Antitrust Modernization Commission requests comments from the public regarding specific questions relating to the issues selected for Commission study.


Comments are due by June 30, 2006.


By electronic mail: By mail: Antitrust Modernization Commission, Attn: Public Comments, 1120 G Street, NW., Suite 810, Washington, DC 20005.

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Andrew J. Heimert, Executive Director & General Counsel, Antitrust Modernization Commission. Telephone: (202) 233-0701; e-mail: Internet:

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The Antitrust Modernization Commission was established to “examine whether the need exists to modernize the antitrust laws and to identify and study related issues.” Antitrust Modernization Commission Act of 2002, Public Law No. 107-273, § 11053, 116 Stat. 1856. In conducting its review of the antitrust laws, the Commission is required to “solicit the views of all parties concerned with the operation of the antitrust laws.” Id. By this request for comments, the Commission seeks to provide a full opportunity for interested members of the public to provide input regarding certain issues selected for Commission study. From time to time, the Commission may issue additional requests for comment on issues selected for study.

Comments should be submitted in written form. Comments should identify the topic to which it relates. Comments need not address every question within the topic. Comments exceeding 1500 words should include a brief (less than 250 word) summary. Commenters may submit additional background materials (such as articles, data, or other information) relating to the topic by separate attachment.

Comments should identify the person or organization submitting the comments. If comments are submitted by an organization, the submission should identify a contact person within the organization. Comments should include the following contact information for the submitter: An address, telephone number, and e-mail address (if available). Comments submitted to the Commission will be made available to the public in accordance with Federal laws.

Comments may be submitted either in hard copy or electronic form. Electronic submissions may be sent by electronic mail to Comments submitted in hard copy should be delivered to the address specified above, and should enclose, if possible, a CD-ROM or a 31/2 inch computer diskette containing an electronic copy of the comment. The Commission prefers to receive electronic documents (whether by e-mail or on CD-ROM/diskette) in portable document format (.pdf), but also will accept comments in Microsoft Word format.

The AMC has issued this request for comments pursuant to its authorizing statute and the Federal Advisory Committee Act. Antitrust Modernization Commission Act of 2002, Public Law No. 107-273, § 11053, 116 Stat. 1758, 1856; Federal Advisory Committee Act, 5 U.S.C. App., § 10(a)(3).

Topic for Comment

The Commission requests comment on the following topic.

Criminal Remedies

1. Some observers have opined that application of 18 U.S.C. 3571(d) consistent with the Constitution may be difficult in all but the most unusual circumstances after United States v. Booker, 543 U.S. 220 (2005), given Booker's requirement that the gain or loss be proven to a jury beyond a reasonable doubt. Should 18 U.S.C. 3571(d) be amended so that it is not applicable in Sherman Act prosecutions? If Section 3571(d) were made inapplicable to Sherman Act prosecutions, should the maximum fine under the Sherman Act be increased? If so, what should be the revised fine amount?

2. In responding to the first question, please also comment on the following:

a. What is the practical difficulty of proving gain or loss from an antitrust violation beyond a reasonable doubt?

b. If evaluation of the amount of gain or loss requires or warrants expert testimony, can it be said as a matter of law that gain or loss cannot, in such a case, be proven beyond a reasonable doubt?

c. Why do businesses agree, post-Booker, to pay fine amounts in excess of the $10 million (now $100 million) statutory maximum?

d. Is the threat of criminal prosecution of a greater number of individuals employed by a business, or of more serious sentences for the business's individuals, a factor that leads some businesses to agree to pay fine amounts in excess of the $10 million or $100 million maxima?

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Dated: May 24, 2006.

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By direction of the Antitrust Modernization Commission.

Andrew J. Heimert,

Executive Director and General Counsel, Antitrust Modernization Commission.

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[FR Doc. E6-8313 Filed 5-30-06; 8:45 am]